Through aggressive litigation in a recent Alternative Dispute Resolution (ADR) case, Boehm & Associates secured a $485,975.65 award for the full value of a union trust fund client’s lien on a denied claim. The case settled between the employer and the injured worker by Compromise and Release with a Thomas finding. The applicant was a construction worker who contracted Valley Fever and sustained a significant respiratory injury requiring emergent medical care, all of which was paid for by the trust fund. Defendant disputed the reporting of its own QME, claiming their doctor’s reporting was not substantial medical evidence. Furthermore, defendant argued that, if the injury was determined to be industrial, it was liable for payment solely to the extent of the California Official Medical Fee Schedule. Defendant’s pre-arbitration offer only amounted to $65,000.00.
Boehm submitted extensive Points and Authorities (P&A) addressing defendant’s attacks on the medical evidence and on the union trust funds’ authority to collect to the extent of benefits administered for industrial care. Persuaded by Boehm’s P&A, the arbitrator sided with Boehm, and we received a judgement for the full value of the lien. Defendant chose not to appeal the decision.
Boehm & Associates has had tremendous success navigating ADR programs for its clients. In 2014, Boehm secured a $208,000.00 settlement for another union trust fund at an ADR mediation for the full value of all the industrial medical care paid for by our client.
ADR cases present unique challenges. They are difficult to identify, and each program is different. ADR cases are adjudicated differently from Workers’ Compensation Appeals Board (WCAB) cases. An ADR program, or “carve-out” program (called a carve-out because parties are carving out of the WCAB system), is an agreement between a large employer or group or employers and labor to opt out of California’s administrative workers’ compensation system and into one of their own design. A labor-management agreement is permitted to establish an ADR system of governing workers’ compensation disputes, provided the agreement complies with the requirements of Labor Code Section 3201.7 and is approved by the Department of Industrial Relations. The goals are to create a more efficient, cost-effective system which is still compliant with the California Labor Code and to permit legal representation and judicial oversight. Labor and management have the autonomy to create diverse programs, provided they conform to the Labor Code.
A very popular model is the three-tiered system utilizing an ombudsman, a mediator and, lastly, an arbitrator. Each ADR program has its own Rules of Practices of Procedure, its own forms and variances of WCAB rules. For example, some programs do not permit the injured worker to be represented by an attorney until the arbitration phase.
Given Boehm’s proven success in litigating ADR liens, we highly advise our clients not to dismiss these types of liens. Boehm has found that patience, persistence and perseverance are the watchwords for successful lien outcomes in a carve-out case. Obtaining the ADR Rules of Practice and Procedure from the Plan Administrator is the first step. The second is filing the lien using the appropriate forms and obtaining an address list of the case parties. The third is keeping close contact with the case parties and the ombudsman to maintain awareness of case status, pending discovery and hearings. The last step is asserting lien rights in the manner promulgated in the ADR policy and procedure manual once the injured workers’ case settles.
If you are unsure of where to begin or how to navigate an ADR program, please allow Boehm & Associates to assert a lien on your behalf and do the heavy lifting.